Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I think we have the opposition amendment before us about a review. For the record, I thought I should speak to the actual amendment. I had a couple of question about the schedules but I thought I would leave that until the final amendment. I want to indicate my support for the amendment. I think review of these provisions is important and, again, if the problem is 12 months I could cope with its being two years, but these are very far-reaching provisions, particularly the Territory ones and in the absence of any other outline already being in place for benchmarks, assessment criteria and those sorts of things. It would give much more confidence to a lot of people if there were something in the legislation that required an open and independent review. The Democrats support this amendment.

Question negatived.

I move Democrat amendment (2) on sheet 5342.

(2)    Schedule 1, item 17, page 27 (after line 33), at the end of section 123UA, add:

        (2)    Notwithstanding any other provisions of this Division 2, a person subject to the income management regime is entitled to access the appeal mechanisms of this Act relating to income management devices.

This simply seeks to ensure that a person subject to the income management regime is entitled to access the appeal mechanisms of this act relating to income management devices. This is a fairly clear principle and it was also a fairly straightforward concern that was expressed to the Senate committee. The Senate committee process, as we know, was only a single day. Witnesses had less than two days notice to prepare submissions and only three days at best to read the actual legislation. There was seriously limited time to be able to explore all of these issues. I think the total amount of time I got to question officials from the government about the entire package of legislation was about eight minutes, so one can understand that there is a range of other issues one might have wanted to have raised.

Similarly, the vast majority of community organisations did not get to appear at all but those that did understandably focused a lot on the issues that we dealt with earlier tonight. Comparatively, there was very little about the whole income management regime. Given how major the change is, that is very unfortunate. That is not to say that I am 100 per cent opposed to at least exploring some of the principles here, although I am quite concerned with how they are being implemented, particularly with regard to the Territory.

I have said on record a few times that I think there is merit in exploring the approach that is being trialled in Cape York, which is also covered in this legislation. I am not 100 per cent convinced it will work but, as the name implies, it is a trial. It has been done after a fair bit of consultation. There are differing views about the totality of that consultation but there has been a fair bit of it. One of the key aspects of it is to engage people at the local level to make decisions that relate to when people become subject to welfare quarantining. None of that is present in the Northern Territory. It is automatic, it is blanket. As we have already stated, it has no bearing on whether somebody is a responsible parent or not.

On top of that, as this amendment relates, there is no appeal mechanism. At one level you could say, ‘It’s automatic; your welfare is going to be quarantined, so what is there to be appealed?’ but there is a whole range of powers given under this legislation to government officials and Centrelink officers to make decisions about pretty fine details in people’s individual lives. I believe that there needs to be the same scope for an independent merits review of those sorts of decisions. Through this legislation we are giving brand-new powers to Centrelink officers to intervene in the very fine detail of people’s lives. People should not forget that.

Particularly in the Northern Territory, as I said, there is no linkage to whether people are being responsible or not—exemplary or not. That is an extra factor: people will be subject to this whether they like it or not and whether there is any justification for it other than where they live, which is in an Aboriginal community in the Territory. I do not think it is stretching things too far to imagine some people might get a little bit peeved about that. The potential is certainly there for people to get peeved if they are having decisions made about how they run their lives and they do not agree with those decisions. They may think the decisions are not fairly based or based on mistakes or misunderstandings of what people have said. Let us not forget that, in many cases, we are dealing with communities and people whose first language is not English and whose cultural understandings of things is very different to that of many other people. There is any amount of material about the difficulties of communication, even when people’s English is perfect, because there are different interpretations of cultural expression.

There is ample opportunity for misunderstanding, even with the best will in the world. When the detail of how you live your day-to-day life is going to be controlled by somebody else and there is a prospect of them making decisions about what you are allowed to do and what you are not allowed to do, including defining what is an essential and what is not an essential, that is difficult and groundbreaking enough, but to then say that there is no scope for independent review is a really serious problem. It is a problem because of the potential for injustice; that is why you have independent reviews. It is a problem because having the independent review can be a real safety valve for people. So even when the decision was right, if a person has been able to appeal to someone else—even though that person has said, ‘No, that’s right’—they are more likely to say, ‘Okay, someone else has verified that.’ It can be of assistance.

Speaking as someone who used to work in what was the Department of Social Security, and who made decisions that were appealed, I can say that if you do not have a bad attitude to things—if you have the right approach—it can be very helpful to know that there is someone else there who will review your decisions independently and who will tell you if you have got it wrong. You can learn from that. That is particularly the case when you are dealing with a brand-new area. The people in the Territory are going to be the first people subjected to this, perhaps alongside the people in Cape York, although I do not think that will be up and running—the minister can correct me if I am wrong—as quickly as the Territory. Maybe Cape York will be next—and under very different circumstances—and then possibly, some time later, other people in the mainstream community will be subjected to it, but only those who are deemed to breach particular criteria regarding school attendance or child protection issues.

When you give a whole brand-new set of powers to Centrelink officers—and they are pretty far-reaching intervening powers—and allow those powers to be exercised in a way that has no external merits review, I think you make a bigger problem in developing a better understanding of how to use those powers well. There is, I know, the scope for internal departmental review, but frankly that is just not good enough. To say that people can take things to court is frankly insulting, particularly with regard to the sorts of decisions that people are likely to want to appeal.

I do not like always drawing parallels to my experiences with this government’s activities in the migration and detention area but it has some echoes for me because we had immigration officials making decisions about people’s cases outside the normal mechanism and, when people were unhappy with the decisions, the only appeal they got was to someone else within the department. I know there is only so far you can go with this parallel but I think there is a valid comparison. If there is a mistake made by an officer, whether through a misunderstanding, incorrect information, sloppiness, shoddiness, overwork or whatever, internal reviews are not sufficient, particularly when the person doing the internal review knows that that is it. If you are doing a review and you know there is an independent person watching over your shoulder, you are much more likely to do a better job. I am not casting aspersions at public servants, but it is just human nature. If you like, I am casting aspersions at human nature; I can do that in great detail if I am in the right mood. It is human nature that, if you know someone is able to appeal your decision to someone who is independent, you will do your job a lot better than if you think: ‘I’ll just do this here; no-one else is going to ever look at it. Near enough is good enough.’

This is a really important issue. It was singled out for special concern by a number of submitters to the inquiry, so, particularly because this is new area, it needs to have those appeal rights. I do not see how any talk about this being an emergency somehow is sufficient to justify jettisoning people’s rights to independent appeal about decisions that really affect pretty fundamental aspects of their day-to-day lives. That is particularly given that, in the way the government have designed this package and this measure, there is no automatic linkage between the income quarantining and anything to do with child protection. It is universal. You say it is some emergency measure to do with protecting children, but there is no linkage to people’s behaviour; it is just where they live. In that context, it is pretty serious to take away this appeal right. Let’s not forget this is people’s money. It might be being paid under a welfare entitlement but it is their money. It is an entitlement, and it is called that for quite a genuine reason. If you have someone else coming in and telling you what you can and cannot spend your money on, which is enormous intervention in people’s lives, then the least you can do is give them some right to appeal if they do not agree with the decisions that are being made on their behalf.